Citation Nr: 1313860
Decision Date: 04/25/13 Archive Date: 05/03/13
DOCKET NO. 08-12 655 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUE
Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
E. I. Velez, Counsel
INTRODUCTION
The Veteran served on active duty from July 1980 to July 1984, including participation in the multinational peacekeeping force in Beirut, Lebanon; his decorations include the Purple Heart and Combat Action Ribbon.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2007 decision of the RO that denied a disability rating in excess of 50 percent for service-connected PTSD.
In October 2011, the Board granted entitlement to a 70 percent evaluation for PTSD, but denied entitlement to a 100 percent evaluation, to include referral for extraschedular consideration. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).
In an October 2011 Joint Motion for Partial Remand (joint motion), the appellant and the Secretary moved to partially vacate the Board decision. Specifically, the joint motion moved to vacate only that portion of the Board decision that denied entitlement to an evaluation in excess of 70 percent for PTSD. Pursuant to the joint motion, the Court, in an April 2012 Order, vacated only the part of the Board's decision that denied entitlement to an evaluation in excess of 70 percent for PTSD. Accordingly, the issue is characterized as such on the cover page of this decision.
In October 2012, the Board remanded the claim for further development. The requested development has been substantially complied with and the claim is ready for appellate review.
The Board has reviewed the Veteran's Virtual VA file and has considered the records contained therein in the issuance of the decision below.
FINDING OF FACT
The Veteran's PTSD has been manifested by moderately severe impairment in social and occupational functioning, near-continuous anxiety and depression, and isolation; but not by gross impairment in thought processes, persistent delusions or hallucinations, grossly inappropriate behavior, or persistent danger of hurting self or others.
CONCLUSION OF LAW
The criteria for a disability rating in excess of 70 percent for PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2012).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duties to Notify and Assist
VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).
VA should notify the Veteran of: (1) the evidence that is needed to substantiate the claim(s); (2) the evidence, if any, to be obtained by VA; and (3) the evidence, if any, to be provided by the claimant. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. Part 3).
A July 2007 letter notified the Veteran of elements of an increased rating claim and the evidence needed to establish each element. This document served to provide notice of the information and evidence needed to substantiate the claim. In the July 2007 letter, the RO specifically notified the Veteran of the process by which initial disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Defects as to the timeliness of the statutory and regulatory notice are rendered moot because the Veteran's claim on appeal has been fully developed and re-adjudicated by an agency of original jurisdiction after notice was provided. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
There is no indication that any additional action is needed to comply with the duty to assist the Veteran. The RO has obtained copies of the service treatment records and outpatient treatment records, and has arranged for VA examinations in connection with the claim on appeal, reports of which are of record and are adequate for rating purposes. The Veteran has not identified, and the record does not otherwise indicate, any existing pertinent evidence that has not been obtained.
Given these facts, it appears that all available records have been obtained. There is no further assistance that would be reasonably likely to assist the Veteran in substantiating the claim. 38 U.S.C.A. § 5103A(a)(2).
II. Analysis
The Veteran seeks an increased disability rating for the service connected PTSD. After a careful review of the evidence the Board finds that the competent and probative evidence is against a finding that the Veteran's PTSD warrants a 100 percent disability rating.
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7.
After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2012).
The Veteran's entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994).
The Secretary, acting within his authority to "adopt and apply a schedule of ratings," chose to create one general rating formula for mental disorders. 38 U.S.C. § 1155; see 38 U.S.C. § 501; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 mental disorders, there can be no doubt that the Secretary anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. This construction is not inconsistent with Cohen v. Brown, 10 Vet.App. 128 (1997). The evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436 (1992).
In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th ed. (DSM-IV) at 32). A score of 31-40 indicates some impairment in reality testing or communications or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. A score of 41-50 is assigned where there are, "Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." Id. A score of 51-60 is assigned where there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflict with peers or co-workers). Id. A score of 61-70 is assigned where there are mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, of theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Id.
The Veteran's service-connected PTSD is currently rated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9411. The actual criteria for rating psychiatric disabilities other than eating disorders are contained in a General Rating Formula.
A 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.
The Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of PTSD. Layno v. Brown, 6. Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment. His statements have been consistent with the medical evidence of record, and are probative for resolving the matter on appeal.
An August 2004 VA examination report notes the Veteran reported that he worked as a letter carrier and as union representative. He had an office to himself, which allowed him to avoid confrontation. The Veteran reported suffering from panic attacks when he became stressed or backed into a corner. He took days off from work to deal with his anxiety, and this affected his work record. A global assessment of functioning (GAF) score of 50 was assigned, indicative by the examiner of serious problems in functioning.
In July 2007, the Veteran's wife reported several behavioral patterns displayed by the Veteran. For example, the Veteran became agitated and started cursing for no reason. He threw objects around, punched the walls, and pounded his fist on furniture. She reported that the Veteran displayed this behavior at least four or five days weekly. The Veteran also had trouble sleeping, and arose repeatedly during the night to look out windows and to check that all windows and doors were locked. She reported that the Veteran displayed this behavior almost every night, and was up every three hours. She also reported that the Veteran spent most of his time at home either in the basement, sitting and staring at the walls; or sitting in the garage.
The Veteran underwent a VA examination in July 2007. He reported that he did not get much sleep; and that he was up every three or four hours, checking his doors, looking out windows, and feeling like something was about to happen. He reported panic attacks, and other symptoms as noted on prior examinations. On examination, the Veteran was casually groomed; hygiene was appropriate. Speech was of normal volume, rate, and rhythm; voice tone was well-modulated. The Veteran was alert and oriented to person, place, and time. He described his mood as depressed and anxious; and reported that it was hard dealing with his symptoms. He denied any suicidal or homicidal ideation. Affect was appropriate to content; no perceptual distortions were noted. Thought content was rational, and thought process was sequential and goal directed. The Veteran reported forgetfulness because of poor concentration. He reported that his mind drifted when he tried to read a book, and that his wife kept track of things for him. The Veteran appeared to be of average intelligence, with intact judgment and insight. Psychotic symptomatology was absent.
The diagnosis was PTSD, chronic, with depressive features and panic attacks. A GAF score of 50 was assigned. The examiner commented that the Veteran's social and industrial adaptability remained impaired, and that his symptoms continued to interfere with some employment activities and social activities. Testing, however, suggested that the Veteran's symptoms remained essentially the same as in 2004. The examiner found that, even though the Veteran was able to work, he had difficulty on the job getting along with others. He also had difficulty getting along with his children, and maintaining a close relationship with his family. The Veteran was essentially isolated.
In April 2008, the Veteran reported that he had trouble coping with daily activities, and that it was a struggle for him to work. He reported that, for the most part, everyone stayed out of his way. He again reported agitation, trouble sleeping, and patrolling the house and feeling that something was about to happen. He reported having no friends and no social life because people could not relate to what he was going through, and that he stayed home in the basement staring at the walls. He did not handle any responsibilities at home, and complained that his life was messed up and he "hated it."
The Veteran was afforded another VA examination in January 2009. At the time, it was noted that the Veteran had a great deal of difficulty specifying any changes that occurred since his previous examination. The Veteran reported that his wife shaved him and laid out his clothes, and told him to take a shower daily. He reportedly did nothing around the house to help his wife, and he occasionally would microwave a meal for himself. The Veteran described himself as sitting in the basement and doing nothing. He engaged in no specific activities. He slept poorly, and awoke every hour to patrol his house. He complained of irritability, which had worsened; he did not report physically acting out, but reported that he yelled and was sharp frequently. He continued to work full time as a union shop steward in the post office; and complained that it took him up to four hours to complete a grievance, where most other stewards completed a grievance in about one hour. The Veteran attributed this to his mind wandering. The Veteran took leave, or was told to take leave, about twice per week for a total of about eight hours. He estimated that a year and a half ago, he took about two hours of leave every two weeks.
The Veteran reported that both he and his wife lived in the same house, but that there was no real marital relationship. The Veteran reported that his son also lived at home, and that the Veteran reported having no connection with him. When his three grandchildren were brought to the house, they were allowed to be around him while a parent was in the room. The Veteran simply did not care, when describing any of his interactions or social deficits, as well as any failure of activities of daily living and general anomie.
On examination, grooming and hygiene were adequate. Speech was within normal limits for flow, rate, and prosody. There was no evidence of psychotic phenomena. Mood was irritable/dysthymic, and affect was congruent with mood. The Veteran was oriented in all spheres. Immediate recall was performed without error. Delayed recall, however, was notably deficient for his age cohort. Attention required some effort to mobilized, but was adequately sustained once engaged; concentration appeared to be at lower levels than expected for his age. Ability to abstract was functional at best. Judgment was considered poor to fair. Impulse control was poor to fair. Insight was extremely limited. A GAF score of 50 was assigned. While the Veteran reported that he slept more poorly than a year and a half ago and that he was less efficient at work, the examiner had no way to verify such statistics.
Records show that the Veteran underwent a neuropsychological assessment in February 2009. There was no indication of thought disorder, delusions, or hallucinations. The Veteran denied any suicidal or homicidal ideation. The examiner noted that the results of testing from a neuropsychological perspective may not be consistent with the Veteran's current abilities; no further psychological inferences were made.
In April 2009, the Veteran reported that he took stronger medications and felt like a "zombie."
The Veteran was afforded another VA examination in November 2012. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. He did not note occupational and social impairment with deficiencies in most areas. The Veteran reported he remained married to his spouse and denied any improvement with the relationship, stating they remained "distant." He stated he prefers isolation and denies any social interactions or interests. He reported that he spends his non-working hours at home, in his basement, watching television. He denied assisting with house chores and stated he is not motivated and does not have the desire to do anything. He denied any interest or enjoyment in activities.
He has worked since 1987 and currently works full time as a mail handler. He also does some union work filing grievances. He reported difficulty with concentration on the grievances. He takes leave from work 3-4 times per month and occasionally goes in late or leaves early. He described he gets into it with supervisors and co-workers which precipitates his decision to take leave. He reported the noisy environment at work causes increased psychological distress. He reported his sleep is erratic and he wakes up in the middle of the night to check the windows and doors. He wakes up 2-3 times a night. His sleep pattern report appears unchanged from the January 2009 examination. He is frequently awakened by nightmares and frequently startled awake by outside noises.
He reported depressed mood, lethargy, lack of interest or enjoyment of activities, distant and detached from everyone, poor concentration, adequate appetite and stable weight, feelings of guilt/worthlessness, and denied thought, plan or intent to harm self or others.
He denied any history of legal or behavioral problems. He reported recurrent and distressing recollections of the stressor event, recurrent distressing dreams, avoidance tendencies, markedly diminished interest in activities, feeling s of detachment, restricted range of affect, difficulty staying or falling asleep, irritability, anger, hypervigilence, and exaggerated startle response.
The examiner noted that the Veteran continues to experience moderate to severe symptoms but the symptoms appear to have remained stable over time. Moreover, the examiner stated that he could not say the Veteran was unemployable, but it appeared more likely than not that his current symptoms impact his job performance. The functional impairment appears to be moderate in nature which is suggestive that the Veteran would be able to maintain some type of gainful employment. The examiner noted that he denies any difficulty with his ability to maintain work performance and specifically identified interpersonal difficulties as his main work-related complaint. His symptoms do appear to be significantly impacting his social functioning. A GAF score of 55 was assigned.
While the GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness" (DSM-IV), the assigned GAF score in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, it must be considered in light of the actual symptoms of the Veteran's disorder (which provide the primary basis for the rating assigned). See 38 C.F.R. § 4.126(a) .
In this case, the lowest GAF score of 50 assigned indicates serious symptoms and serious impairment in social and occupational functioning. Examiners have noted that the Veteran's symptoms interfere with both employment and social activities. However, total social and occupational interference has not been shown.
Upon careful consideration of the evidence pertaining to this claim the Board has determined that for the entire appellate period, an evaluation in excess of 70 percent is not warranted for the Veteran's PTSD. In that regard, the Board observes that the Veteran has reported sleep disturbance, panic attacks, nightmares, flattened affect, anxiety, depression, hypervigilence, isolative tendencies, avoidance tendencies, irritability, and difficulty with concentration.
Objectively, the Veteran has demonstrated no perceptual distortions, no suicidal or homicidal thoughts or attempts, he has been satisfactorily oriented, rational thought, fair judgment, poor impulse control and limited insight. In spite of these severe PTSD symptoms, which clearly demonstrate occupational and social impairment with deficiencies in most areas, the evidence does not show that the Veteran's PTSD symptomatology equates to total occupational and social impairment as is required for the assignment of a 100 percent disability rating.
The Board accepts that the Veteran's PTSD has significant effects on his functioning. However, the lay and medical evidence of record does not demonstrate total social and occupational impairment due to his service-connected PTSD. As discussed, although the Veteran does isolate himself socially and reports difficulties dealing with coworkers and supervisors, he continues to work full-time as a mail handler. He also reports doing work for the union several times a week filing grievances on behalf of other employees. Thus, as contemplated by the Court's holding in Mauerhan, his PTSD is not shown to result in total social and occupational impairment so as to warrant a 100 percent rating.
Moreover, the evidence does not demonstrate other findings which would support a 100 percent schedular rating for PTSD. Absent are obsessional rituals; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; obvious neglect of personal appearance or hygiene; or inability to establish and maintain effective relationships. Even taking into account the evidence of fair judgment, poor impulse control and limited insight, and isolation, the overall disability picture does not more nearly approximate the criteria for a schedular evaluation of 100 percent. As such, the Board concludes that the currently assigned 70 percent evaluation for the Veteran's PTSD is appropriate.
In not granting a 100 percent schedular rating for PTSD, the Board is not minimizing the severity of the Veteran's symptoms. Nevertheless, the symptoms and manifestations of his PTSD, while productive of significant impairment, are not so severe that the Veteran can be said to be totally impaired. Despite demonstrated difficulties with social relationships, the Veteran is clearly able to function to at least some degree socially, as has been demonstrated by continuing a relationship with his wife for many years despite problems. Similarly, while he has reported difficulties with both coworkers and supervisors, he has maintained full-time employment as a mail handler. Hence, while the Veteran may have difficulty establishing and maintaining relationships with others, the evidence does not demonstrate total social and occupational impairment.
The Board has also considered whether the Veteran's PTSD presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected PTSD are inadequate. A comparison between the level of severity and symptomatology of the Veteran's PTSD with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Consequently, the Board has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.
ORDER
Entitlement to an increased disability rating greater than 70 percent for service-connected PTSD is denied.
____________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs